Google Books logoLast Tuesday Judge Denny Chin refused to grant the plaintiffs’ motion for final approval of the Google Books Amended Settlement Agreement (“ASA”), finding that the ASA is not fair, adequate, or reasonable. The opinion is available here, and worth the quick read (students, you may be interested to see that Judge Chin uses several law review articles to provide background information about the case and its implications). Judge Chin, in analyzing whether the agreement met the requirements of Federal Rules of Civil Procedure 23(e), applied the factors articulated in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). He found that most of the Grinnell factors favored approval, i.e.:

  • litigation has been complex, expensive, and lengthy
  • the case has been pending since 2005
  • the outcome of the case, were it to go to trial, is in substantial doubt
  • maintaining the class throughout the litigation is risky

One factor however, weighed substantially against approving the settlement: the many negative reactions of class members, which Judge Chin summarized as follows:

  1. Adequacy of class notice. Judge Chin rejected this objection.
  2. Adequacy of class representation. Judge Chin found there to be an issue regarding the existence of competing interests between class members.
  3. Scope of relief under Rule 23. The judge found that the scope of the settlement goes beyond permissible bounds in several respects. First, the settlement reshapes copyright law related to orphan works and affects international copyright law, which are matters more properly determined by Congress. Second, the settlement goes far beyond the boundaries of the complaint, which was limited to the scanning and display of “snippets” by giving Google the ability to digitize and sell copies of millions of books, including books still protected by copyright. Third, the interests of some class members have not been adequately represented, such as academic authors who may prefer free access to their copyrighted books and the copyright holders to orphan works, who have a conflict of interest with Google. Fourth, the agreement violates copyright law by requiring copyright holders to take affirmative action to prevent the scanning of their books. Fifth, the settlement grants Google a monopoly over orphan books and increased Google’s position in the search market. Sixth, some objectors have concerns that consumers will lose privacy in their reading habits to Google, but Judge Chin rejected this concern due to Google’s safeguards. Seventh and lastly, despite the removal of certain foreign works from the ASA, foreign copyright holders continue to object that the settlement will affect their works and violate the international copyright law.

So what’s next? In closing, Judge Chin informed the parties that he may approve the settlement if it were changed to an “opt-in” agreement from an “opt-out” agreement. This option is extremely unattractive to Google because it significantly decreases Google’s ability to exploit the books it has digitized so far.

So what is next? A status conference is scheduled for April 25. Google has not yet publicly responded to the court’s decision. Settlement does not seem very likely. An “opt-in” settlement agreement accomplishes very little for Google because Google can, and already has, continue to make private agreements with publishers and authors. Many of us hope that Google will approach Congress to pass copyright reform, such as this legislation that stalled out in Congress in 2008.

While Congress is the appropriate forum for addressing the issue–and not a far-reaching agreement between corporations and private parties–Congress is notorious for leaving the crafting of copyright legislation to large, wealthy, corporate copyright holders. The voices of libraries, the public, and people who make use of public domain materials, are typically ignored. So although I have been hoping for the settlement to be rejected so that Congress can tackle the problem, there are some serious barriers to its passing. Google will propose legislation very similar to the ASA, except the Registry will be government run and the ability to exploit orphan works will be opened up to other entities. Companies like Amazon and Microsoft will not like this because Google has a head start on commercializing orphan works. Congress will ignore provisions meant to assist libraries in digitizing their collections or helping patrons gain access to orphan and out-of-print works. Is there any way to make arguments in support of a robust public domain palatable to Congress?

Google has been busily digitizing the world’s books since 2004.  As of December 2010, some 15 million books have been digitized.  A couple of months ago, Google Labs announced a new tool called Ngram Viewer that allows the user to analyze and graph word usage over time from a 500-billion-word subset of those 15 million books.  Google has divided the 500-billion-word subset into a number of “corpora,” which allow you track usage of words and phrases in English, American English, British English, and a number of foreign languages including Spanish, French, and German.  “English Fiction” is a particularly intriguing corpus.  The most accurate data are for English-language materials published between 1800 and 2000.

Ngram Viewer makes it possible to track the early appearances of a word or phrase (like “laptop”) in published books, but it’s even more interesting to compare the ascending and descending usage of two or more words or phrases (like “laptop” and “mainframe”) on the same graph.  The graph below compares the usage of the words “Nazism,” “fascism,” and “communism” in English-language works published between 1920 and 2008.   Not unexpectedly, usage of “Nazism” and “fascism” peaks in the 1940s, while usage of “communism” reaches an apex around the time of the Cuban Missile Crisis (1962).  Beneath the graph is a series of year ranges corresponding to each search term entered into Ngram Viewer; clicking on a range runs a search in Google Books for publications within that range of years that include the search term(s) in question.  Click on the image below to enlarge it.

Ngram ViewerNgram Viewer is fun and easy to use.  Once you start experimenting with it, it’s hard to stop!  More detailed information about Ngram Viewer is available at  To see an interesting collection of Ngrams submitted by users, go to

Have you noticed anything different about searching Google lately?  On September 8, 2010 Google announced the gradual rollout of Google Instant, an enhancement to its search engine.  Google Instant speeds up search time by predicting possible search results while you are still in the process of typing in your search terms.  If one of the predictions is what you are looking for, you can just click on that item in the list, without entering the remainder of your search.  For example, if you’re searching for macaroni salad recipes, you need only type the first four letters “maca” into the Google search box, and “macaroni salad recipe” appears below the search box in a list of clickable links (see image below) along with search results.  Google claims that Google Instant “can save 2-5 seconds per search.”  You can find more information about Google Instant, including FAQs and a short video introduction, at
Google Instant

Google Wave logoIn a surprise move, Google announced it plans to shut down Google Wave at the end of this year.  Google Wave combines character-by-character live typing with saved messages to create an instant-messaging-meets-email technology great for distance collaboration.  Wave is more conversational than Google Docs and allows for dragging and dropping images and video into the text.  Much of Wave’s code will continue to be open source and available for incorporation into other applications.

I am honestly surprised that Google has given up on Wave so quickly.  Wave adoption has been slow but that is common with new technology.  Google search and Twitter took several years to go viral.  If Google has an idea for a bigger, better application, I would have expected the company to continue promoting Wave until the new app was ready for release.  More likely Google’s expectations for Wave were too ambitious.  Google did not do a stellar job marketing Wave and what Wave can do because Google didn’t understand itself how Wave would fit into our lives.  Google relied too much on third-party developers to create add-ons that would make Wave an “I can’t live without it” tool.  Remember how Google released Wave to developers before anyone else last year, encouraging them to create add-ons?  When the Wave “killer apps” didn’t materialize, Google realized it still didn’t know how to position Wave in the market.

Google encrypted search logoGoogle released the encrypted version of its search engine in beta on Friday, available at  The SSL (Secure Sockets Layer) encryption protects your search query and search results while they are in transit between Google and your computer from third parties like ISPs (Internet Service Providers).  SSL encryption does not protect your information from malware that may be running on your machine.  The encryption only works for communications with Google, so it does not provide privacy when you click on a search result.  Encrypted search does not yet work for Google Images or Google Maps, although SSL encryption has been in use by Gmail and Google Docs for some time.  And though your information is protected from snoopy third parties, Google still knows and tracks the search terms you are entering and the results you are clicking.

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